Why is K2 derivative status not affected

[david_dawei]

Here is a quoted section which I know is for K3/K4:

 

K3 Visa Implementation

http://travel.state.gov/visa/laws/telegram...grams_1431.html

 

However, as the BCIS rule explains, the K4 child will not be able to file for adjustment of status in the United States until the U.S. citizen parent/step-parent files a I-130 on behalf of the child. If the U.S. citizen parent/step-parent never files the I-130 petition, the immigrating parent may do so once he/she has obtained LPR status, but the child would have to wait for an available visa number. Finally, according to the BCIS rule, as the immigrating parent, upon adjusting status, "would no longer be in K-3 status, the child would no longer be in lawful K-4 status, since this is merely a derivative classification", and that child would begin to accrue unlawful presence. As the K3/K4 may not change status in the United States to another NIV category (see below), the continued lack of an I-130 petition will eventually create adjustment of status problems for the K4. K4s who do not meet the definition of stepchild in INA 101( B )( 1 )( B ) because the stepchild relationship was not established before the stepchilds 18th birthday will face the same problem K2 derivative children of fiances have long encountered, i.e., the U.S. citizen spouse will be unable to file the I-130 petition on their behalf. In these cases, the K3 will have to file the petition when he/she obtains LPR status.

 

Interesting they make a parallel point to K2s on aging out, but the rest of this doesn't seem to have a parallel affect to K2s (?).

 

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Here's my question:

 

To set the stage with an example: Let's assume a K1 enters the US and starts adjustment of status process. The K2 is "follow to join" , but timing wise will not get to the US in time to adjust by the time the K1 has adjusted to permanent resident.

 

1) Why does a K2 not lose their derivative status if the K1 adjusts to permanent resident and therefore are no longer a K1 ?

 

2) Is there a source you can direct me to that covers this.

 

Thank you !

[david_dawei]

I found the answer in 9FAM:

 

9 FAM 41.81 N12 CHILD OF ALIEN K-1 FIANCEE)

(CT:VISA-756; 07-27-2005)

Department of Homeland Security (DHS) and the Department have agreed that the child of a K-1 principal alien may be accorded K-2 status if following to join the principal alien in the United States even after the principal alien has married the U.S. citizen fiancee), and acquired lawful permanent resident (LPR) status. However, the cutoff date for issuance of a K-2 visa is one year from the date of the issuance of the K-1 visa to the principal alien. After one year, and provided that the alien qualifies, the filing of an immediate relative or second preference petition would be required.

Edited July 18, 2006 by DavidZixuan (see edit history)